from the four-factor-mess dept

We've noted before just how fickle fair use determinations can be when judges go through the standard four factor test of what qualifies as fair use. I've heard lawyers say that with any fair use case, it's possible to make an argument that will make all four factors side with one party -- meaning that the courts can basically just decide who they think should win and fit the analysis to that end result. You can see that quite clearly in the 9th Circuit appeals court ruling and dissent in the Monge v. Maya Magazines case (pdf and embedded below).

The case involves a pair of Latin American celebrities (the singer Noelia Lorenzo Monge and her manager/husband Jorge Reynoso). Because they wanted to cultivate the image that Monge was single, the couple tried to keep the news of their marriage (done quietly in Las Vegas) secret from everyone (including their parents). Someone who did some driving for the couple found a memory card that included a bunch of photos and videos, and because he claimed he hadn't been paid what was owed, he sold the card to a magazine, who found photos showcasing the couple's wedding, and published a story with the images.

So here's the question: is this fair use? Unfortunately, the majority stampeded through the four factor test like a bull set on the red flag at the end, tossing aside any sort of reasoned analysis, and finding against fair use on every account. To do so, it had to twist quite a few concepts and make some highly questionable claims about the law. Just as a starting point, the court argues that the anti-circumvention measures of the DMCA "supersede" the key ruling in the Sony Betamax case that made VCRs and time-shifting legal. If that's true, it's certainly news to many copyright lawyers. I asked a few and none could understand this particular claim.

From there the four factors fell one-by-one, as the court seriously suggested that such photos weren't newsworthy and that the same story could have been written without the photos by using other evidence (like a marriage certificate).

I'd walk through and highlight the mistakes made by the majority decision in great detail... except that I don't need to. Because Judge Milan Smith did a better job than I ever could with the dissent, picking apart the mistakes of the majority ruling with detailed citations for why it was wrong. However, I do think that Smith may have overstated some of the significance of the case in his opening:

Copyright is not an inviolable right
that confers upon creators absolute control and ownership
over their creations. Copyright protection was enacted “[t]o
promote the Progress of Science and useful Arts” by creating
a system in which authors and artists may reap the benefits of
their creative contributions.... The
fair use doctrine was designed to act as the counterbalance to
copyright by “permit[ting] courts to avoid rigid application of
the copyright statute when, on occasion, it would stifle the
very creativity which that law is designed to foster.”...

The majority’s fair use analysis in this case is inconsistent
with Supreme Court precedent, and thwarts the public interests of copyright by allowing newsworthy public figures to
control their images in the press. The majority contends that
the public interest in a free press cannot trump a celebrity’s
right to control his image and works in the media—even if
that celebrity has publicly controverted the very subject matter of the works at issue. Under the majority’s analysis, public
figures could invoke copyright protection to prevent the
media’s disclosure of any embarrassing or incriminating
works by claiming that such images were intended only for
private use. The implications of this analysis undermine the
free press and eviscerate the principles upon which copyright
was founded. Although newsworthiness alone is insufficient
to invoke fair use, public figures should not be able to hide
behind the cloak of copyright to prevent the news media from
exposing their fallacies.

I think this actually would only apply to photos over which the celebrity held copyright -- so not "any" works, as Judge Smith says. That could be an important distinction (in fact, one might question whether or not the couple actually holds a legitimate copyright registration, since they did not take the picture, and while not true in every case, it's mostly accepted that the photographer holds the copyright, even when using someone else's camera). However, that issue isn't even up for consideration here. The case is focused exclusively on whether or not this was fair use.

And for each prong that the majority finds against fair use, Smith makes compelling arguments that fair use clearly applies. Here's just one example, concerning the purpose of the use:

The majority contends: “[i]n one sense, the parties’ purposes are identical: Photographic documentation of the wedding.” However, the majority repeatedly confuses the original
subject matter of the photos with the intended use of the
images. For the Couple, these were personal images, originally taken to capture the night of their marriage. After they
were married, however, the photos were kept secret for the
Couple’s commercial gain. As Reynoso testified, the images
were withheld from the public solely for “marketing” purposes, in order to maintain Noelia’s “image of being a single
singer appeal to young people.” (“Q: Why did you decide to
have a secret wedding? A: I just mentioned to you that we’re
trying to protect her image of being a single singer to appeal
to young people . . . Q: Were there any other reasons? A: No,
just marketing reasons.”). For Maya, the photos were used as
direct, documentary evidence of a clandestine wedding that
had been hidden from the public for years, disproving the
Couple’s representations to the contrary.

If you look around, it's not that difficult to find some of the photos in question. Normally I'd post at least one with the story, but given this ruling, I'm at least sufficiently concerned about doing so. I would argue that, rather than the wedding itself, this particular story really is just focused on the photo image, which would make it much more likely to be considered fair use. But, as noted, the judges can be pretty arbitrary on this particular issue...

And there goes Pirate Mike again...

.. pirate apologist.

Not *once* in your post did you mention what might happen if the evil tabloid prevailed. As you continually say - the purpose of copyright is to promote the advance of the arts.

Really, think about it. If the pirate tabloid had won, it would send a chilling effect through the world of famous couples wanting to hide proof of their wedding for monetary gain! They'd stop taking photos of their secret weddings, which would lead to a decrease in the amount of photos taken! Clearly, this ruling is 100% in line with what the founding fathers had in mind when they wrote the first amendment!

Copyright

> I think this actually would only apply to
> photos over which the celebrity held copyright.
> However, that issue isn't even up for
> consideration here. The case is focused exclusively
> on whether or not this was fair use.

How can it focus on fair use and not be about who holds the copyright? If a paparazzi had managed to snap a photo of these two getting married, they would have no legal basis whatsoever for blocking publication. It's only because the photos were theirs to begin with that the court is even dealing with a fair use analysis. The paparazzi in my example certainly wouldn't be required to assert fair use to legally use photographs he took himself.

Re: And there goes Pirate Mike again...

If you look around, it's not that difficult to find some of the photos in question. Normally I'd post at least one with the story, but given this ruling, I'm at least sufficiently concerned about doing so.

At first I thought, "What if an AC posted a link to one of the photos? Would Techdirt get a subpoena demanding their identity?"
Then I thought, "Wait, what if an embedded image was posted? Oh, wait, image tags aren't allowed, duh."
Now I'm wondering whether or not a judge would declare that if Techdirt can prevent people from posting illegal images, they must be able to (and therefore should) prevent people from posting illegal links...

Depends...

This whole situation depends on the method of getting these photos of the couple.

If it were a paid professional photographer by the couple, it was definitely supposed to be kept confidential and the photographer could be easily sued for breach in confidentiality.

If it were the paparazzi taking the photo, then all I have to say is this:

“I suppose my view is that we have at the one end of the spectrum people who literally risk their lives to go and expose the truth about war and famine and revolution. Then at the other end we have behavior that is illegal and I think unjustifiably intrusive, and I wonder sometimes why they are called the same thing,”

Re: Depends...

If I'm reading J.K.'s quote correctly a photojournalist doing work she does not agree with is doing illegal work by virtue of it not risking said photojournalists life. Who knows, you snap an image of the wrong celeb and you just might be risking your life.

Re: Re: Depends...

You must realize that the photos were taken without the couple's consent to understand the problem.

I interperate that JK Rowling is simply implying that the blatant invasion and encroachment of the privacy of individuals is not journalism or reporting the news.

In this particular case someone intruded upon a person's personal life. How would you like it of I knocked on your door at a private moment (say taking a shite on the toilet, took a picture of you sitting there grunting on the toilet and handed it out to the world as news about your personal life?

Come on over, I welcome you. You also missed the point, as I think maybe OP did, Somebody stole the images and sold them to the press in the first place over a dispute about wages due. Shouldn't this be more of a you stole my stuff thing and not a you infringed my copyright thing, esp. when neither of the newlyweds took the images?? I was merely commenting that J.K. has a skewered sense of what is actually legal and illegal.

And you insinuating that the lovely couple's wedding is akin to shitting is wow, just wow. Yes , it was newsworthy; they were hiding said nuptials as a way to monetize their perceived singleness.

Re: Depends...

This is really more of a privacy issue than a copyright one though. If you breach a confidentiality agreement or trespass onto someone's property to take a photo, there are other legal remedies. There's no reason to screw around with fair use and copyright law to protect privacy.

Re: Depends...

"This whole situation depends on the method of getting these photos of the couple."

"Someone who did some driving for the couple found a memory card that included a bunch of photos and videos, and because he claimed he hadn't been paid what was owed, he sold the card to a magazine, who found photos showcasing the couple's wedding, and published a story with the images."

The key here is the memory card. While the guy may gain possession of the memory card, he does not automatically gain copyright to the images on it. He didn't shoot them, they are not his. May I remind you of:

Economic Substitute

I really wish we'd add a clause to Section 107 saying to something to effect of: Any use which does not create a direct economic substitute for authorized copies is fair use. It'd make fair use a whole lot clearer.

Re: Re: Depends...

Oh I agree 100% I honestly do. Thing is no matter how you look at it from a constitutional point of view, the magazine is still in the wrong.

The judge made the ruling and the couple did it in secret for marketing concerns. It's all a giant mess. But the fact remains that even if the secret wedding was for marketing strategy, the photos still violated their basic human rights to privacy.

Re:

Re: Re: Depends...

"There is literally nothing in JK's quote that makes any sense."

On one side:
There are people who risk their lives brining us news from around the world, and in this news we get stories about the good and bad things in life. Theses people are called reporters. They snoop around for realavent facts to bring us the goings on about the events that take place around the world. Journalists bring you the news to rouse intersts in social issues and get the public aware of problems that effect everyone.

On the flip side:
There are people who invade upon your personal life, get in your way and speculate on how fat you look or how they think your divorce went, and generally stock your every move hoping you slip up so they can ENTERTAIN others about how you fucked up and more speciation as to why you did fuck up. This is the papparazzi. They don't care at all about the world they live in as long as they get paid.

I'm not entirely sure how clear you wanted it, but I did my best to explain its meaning.

*The Publication received a memory card of dubious ownership.
The Driver (possessor of the card) admits he took the card for alleged non payment of services
* There is no (AFAIK) court ordered seizure of goods in lieu of of this alleged non-payment therefore the goods are obtained illegally and subject to all laws that go along with that (theft is but one - detinue is another on the part of the publisher)
* The publication having done no due diligence that they reasonably should carry out then analyses the memory card and finds photo's
* They then use these photos in their publication to at the end of the day obtain commercial advantage (ratings, sales, advert dollars, readerships etc)
* The legal owners of the memory card and by extension the photos (whether they own the copyright to those photos is immaterial at this stage) then take the publication to task.

The only thing wrong here is that the Publication and the "Driver" have not been charged with criminal acts, and that the court went through the convoluted process of trying to decide if it was fair use.

It's NOT fair use, it was at the start absolute usage of purloined property with intent to gain commercial advantage. The publication had no right to use the images, no right to pilfer through the memory card, and an absolute obligation to inform the authorities that they had received what any reasonable person would believe as stolen goods.

Whether the owner of the photos/card were 'celebrities' is an absolute irrelevant factoid as well.

Re: Re:

Re: Depends...

"This whole situation depends on the method of getting these photos of the couple."

Wally, you are correct here, but only because it decides the difference between this being a fair use argument, rather than some other sort of personal appearance of whatever argument.

Basically, the driver didn't have ownership of the images. In selling them to the magazine, he didn't magically create ownership. His act was pretty much in bad faith. The magazine perhaps didn't question it.

The Fair Use argument raised is absolutely, totally destroyed by the majority decision, which shows that the use isn't really transformative (the images were run pretty much as shot), and that their publication did harm to the copyright holder by harming their market to sell those images later.

The minority reply, which Mike quotes from abundantly, is perhaps one of the most rickety I have read in a while on the subject. Claiming that adding captions or arranging the images on the page was "transformative" is a laughable concept, because they are all things external to the images themselves.

Moreover, the minority attempts to claim that there is no harm done here. But you could only do that if you closed your eyes and ignored reality. The images were private, making them public causes some harm. Taking something that has not yet been sold, giving it for publication very much kills the primary market for these images. That the same magazine (Maya) specifically pays for exclusive wedding images, but wouldn't pay again for the same images pretty much sums up the issue.

The minority opinion is the reason why it's hard to take a positive fair use judgement seriously. The logic required by this judge to ignore the evidence is extreme, this is a case where it's just so damn obvious that you wonder how anyone could miss it.